- United States
Virginia had operated VMI, a prestigious military college, as a
men-only institution since its founding in 1839.
The school's purpose was and is to develop "citizen-soldiers."
VMI was the only single-sex school in Virginia's.
VMI is known for physical rigor, mental stress, absolute
equality of treatment, absence of privacy, in a manner
comparable to Marine Corps boot camp).
The U.S. sued Virginia VMI, alleging its men-only admissions
policy violated the Equal Protection Clause of the Fourteenth
Virginia argued that it would have to materially changed its
distinctive methods if the school were made co-ed.
Instead, the state sought to create a less rigorous program for
women at Mary Baldwin College.
Ruled in favor of VMI.
If women were admitted, aspects of the schools distinctive
methods would have to change.
Court of Appeals
Neither the goal of producing citizen soldiers nor VMIs
implementing methodology is inherently unsuitable to women.
Virginia offers Womens Institute for leadership (VMIL).
Shares VMIs mission.
Different academic offerings, methods, and financial resources.
LSAT entrance is 100 points lower than VMI.
Only offered arts degree, but could obtain an engineering degree
paying their own tuition.
Different adversative method, were they focused on reinforcing
District Court Approved Plan.
Exceedingly Persuasive Justification
Parties who seek to defend gender-based government action must
demonstrate an exceedingly persuasive justification for that
The burden of justification, a State must show "at least that
the [challenged] classification
governmental objectives and
That the discriminatory means employed' are
'substantially related to
the achievement of those objectives.'"
The justification must be genuine, not hypothesized or
invented post hoc in response to litigation.
And it must not rely on overbroad generalizations about the
different talents, capacities, or preferences of males and
Heightened Review Standard
The heightened review standard applicable to sex-based
classifications does not make sex a proscribed [prohibited]
When sex classifications can be used
Sex classifications may be used
To compensate women for particular economic disabilities
[they have] suffered.
To promote equal employment opportunity.
To advance full development of the talent and capacities of
our Nation's people.
When sex classifications CANNOT be used
But such classifications may not be used to create or perpetuate
the legal, social, and economic inferiority of women.
We conclude that Virginia
has shown no "exceedingly persuasive justification" for
excluding all women from the citizen-soldier training
afforded by VMI.
We therefore affirm the Fourth Circuit's initial judgment, which
held that Virginia had violated the Fourteenth Amendment's Equal
Because the remedy proffered by Virginia -- the Mary Baldwin
VWIL program -- does not cure the constitutional violation,
i.e., it does not provide equal opportunity, we
reverse the Fourth Circuit's
final judgment in this case.
Virginias Arg - single-sex education provides important
First, the Commonwealth contends, "single-sex education provides
important educational benefits," and the option of single-sex
education contributes to "diversity in educational approaches.
Categorical exclusion was not enact to diversify education
While single-sex education offers some pedagogical benefits, and
diversity among public schools can be a public good, our
precedents hold that
"benign" justifications proffered to defend categorical
exclusions will not be accepted automatically UNLESS the
state enacted the exclusion for that purpose.
Virginia has not shown VMI's policy was actually established to
diversify educational opportunities.
Virginias Arg #2 VMIs adversative approach would have to
Second, the Commonwealth argues, "the unique VMI method of
character development and leadership training," the school's
adversative approach, would have to be modified were VMI to
Some women would choose and meet current method
As for Virginia's contention that admitting women would require
VMI to change its program radically, we find that some women
would choose VMI's current method, and be capable of meeting
VMI's current physical standards.
Not Exceeding persuasive self-fulfilling Prophecy
The notion that admitting women would downgrade VMI's stature
and quality is a self-fulfilling prophecy, like those
historically used to deny women rights and opportunities, and
cannot rank as "exceedingly persuasive."
Section VI Virginias Separate Program
Virginia did not eliminate Plan.
Instead Virginia created a separate plan
Must remedy exclusionary policies
States which choose to retain exclusionary policies must propose
a remedy "directly addressed and related to" the violation.
No opportunity to experience VMI training
Here, Virginia's proposed women's program offers no
opportunity to experience the rigorous military training for
which VMI is known, instead offering a "cooperative method"
Concurring Chief Justice Rehnquist
Agrees with decision.
Disagrees with analysis.
Traditional Test To withstand a constitutional challenge
(Craig v. Boren)
To withstand constitutional challenge, classifications by gender
Must serve important
governmental objectives AND-
Must be substantially related
to achievement of those objectives."
Introduction of another of an UNCERTAIN element
The majority adheres to this standard,
But also introduced the "exceedingly persuasive justification"
standard, which adds uncertainty.
Not models of precision
Important governmental objective
But they have more content than does the phrase exceedingly
Demonstrate that the two programs match.
An adequate remedy would be if the two institutions offered the
same quality of education and were of the same overall calibre.
DISSENT Justice Scalia
Objection to majority's standard
Scalia objected first to the majority's choice of standard.
He claimed that while the majority admitted to having changed
the traditional intermediate level of review, it was in fact
substituting a new and improper "exceedingly persuasive
justification" standard that contradicted the reasoning of the
Court's prior gender cases.
In Scalia's view, this standard was an "unacknowledged
adoption of what amounts to (at least) strict scrutiny."
Satisfies mid-level review
Scalia believed that operation of VMI as an all-male school
satisfied mid-level review when that standard was properly
The state had an important interest in achieving the educational
diversity provided by single-sex colleges.
And when Virginia elected to have an all-male school that used
the adversative model (VMI) and an all-female school that used
the cooperative model (the new Mary Baldwin program), it had
selected a strategy that was "substantially related" to the
achievement of that interest in diversity.
End of single-sex public education
Scalia said that the majority's approach "ensures that
single-sex public education is functionally dead."
In fact, he said, this approach even endangered private
single-sex colleges, since the government's furnishing of
all-important financial assistance (e.g., tax deductions for
private donations) might be held to be state action in support
of discrimination, as it had been in cases involving private